a blog about sexuality, gender, law and culture

8 posts from March 2010

March 18, 2010

The brief for Hastings Law School, defending its policy of requiring that all recognized student organizations allow all students to join (and vote), has now been filed with the Supreme Court, as have all the amicus briefs on both sides. The brief of the lgbt student group, Outlaw, which intervened in the lawsuit, is also in. The opposing party, Christian Legal Society, filed its brief in January. You will find all the briefs here. (One more brief will be allowed: the reply brief for the Petitioner CLS.)

Oral argument has been scheduled for April 19.

There are heavy hitters on both sides of this case. Stanford Law Professor Michael McConnell is representing CLS and Professors Doug Laycock of the University of Virginia Law School and Richard Epstein of the University of Chicago Law School each filed amicus briefs in support of CLS (for, respectively, a coalition of religious groups led by the American Islamic Congress and for the Cato Institute). Among the briefs supporting Hastings was one filed by the Association of American Law Schools, written by Professors Mike Dorf and Sherry Kolb of Cornell Law School, and another on behalf of State Universities, on which the Yale Law School Supreme Court Clinic collaborated.Those are just some of the academics.

The case is a complicated stew of issues, both factually and legally. One threshold dispute is over the nature of the Hastings policy: whether it is truly an all-comers policy, as described above, requiring that, to be recognized, student groups must be open to all students "regardless of their status or beliefs." This would make for the strongest argument that the school's policy is clearly viewpoint neutral. Alternatively, CLS is trying to argue (despite a stipulation to the contrary in the lower courts) that the school actually has an anti-discrimination policy, prohibiting student groups from discriminating based on specific characteristics, including sex/o and religion.

If it is the latter type of policy, CLS argues that its effect is to discriminate against it based on viewpoint, because CLS excludes students who cannot profess belief in the Christian trinity or who are engaged in "unrepentant participation in or advocacy of a sexually immoral lifestyle," which includes "all acts of sexual conduct outside of God's design for marriage between one man and one woman...[including] fornication, adultery, and homosexual conduct." CLS argues that its right to exclude, for example, students who are openly and proudly gay from voting or leadership positions (anyone can attend meetings) is guaranteed as part of its right of expressive association under the First Amendment. Hastings counters that an anti-discrimination policy is also viewpoint neutral, because its purpose is not to suppress any expression but to increase participation; and further that CLS is free to exist and proselytize, but simply cannot acquire the benefits of recognition.

I am frankly conflicted about this case. I think the better policy would not be the all-comers policy. I would favor allowing the student Democrats to exclude Republicans, the CLS to exclude non-believers, the lgbt group to exclude anti-gay advocates, etc etc. To my mind, although the distinction blurs in practice, it is critically important that people be excluded from viewpoint-driven groups based on viewpoint, not on status or identity. But is it unconstitutional for Hastings to enforce an all-comers policy? In other words, does CLS (or the lgbt group or any other group) have a constitutional right to exclude those who disagree with its philosophy, when what is at stake is not the existence of CLS but only its participation in the Hastings Law School system of recognized groups? Not so clear.

Although the holding of the case will center on expressive association and speech doctrine, there are other issues mixed in that carry broader implications, politically and culturally. One is simply whether religious belief is understood as a viewpoint or as an equal protection status. It is both, of course, but which one dominates - an artifact of law - could affect the analysis. A second issue is whether CLS is entitled to stronger constitutional safeguards than other expressive organizations because it is religious, an argument made explicitly in some of the briefs. In other words, maybe the student Republicans could be constitutionally forced to accept student Democrats as members, but conservative argue that the same principle should not apply to a religious student group. A third is whether the Court will accept the contention, made by some amici supporting CLS, that public institutions cannot have a compelling state interest in eradicating sex/o discrimination because that form of discrimination has not been accorded heightened scrutiny by most courts. These last two are extremely dangerous arguments.

March 17, 2010

The strategic advantages of framing the federal constitutional challenge to Prop 8 more narrowly, so as not to challenge all 40 or so state law prohibitions on same-sex marriage, have been evident since the beginning of the Perry case. The lgbt legal groups filed an amicus brief making that argument; Matt Coles has spelled it out, and I've argued since August that it's the plaintiffs' best bet for a victory. Now, in a sign that there may be some meaningful convergence between the strategies of the lgbt legal groups and the plaintiffs' lawyers, Ted Olson and David Boies are starting to talk in those terms as well.

From a Gay City News report of an invitation-only event at the NY Times:

Boies and Olson were cagiest on how broad they think a potential
district court victory might be. The court could find –– in somewhat
analogous fashion to a 1996 Supreme Court case in which an anti-gay
Colorado amendment was thrown out –– that voters in California had
acted to deny gay and lesbian couples the equal protection of the law,
in this case guaranteed by the state rather than the federal
Constitution.Or, Walker could rule that Boies and Olson
succeeded in doing what they say they will fight to the end to
demonstrate –– that the fundamental right to marry and the equal
protection of the laws of the United States are violated when same-sex
couples are denied access to civil marriage.That, of course,
would be the ultimate game-changer. Olson, perhaps the nation’s
preeminent Supreme Court litigator, and Boies are clearly banking on
their ability to win that argument on the merits at the high court,
whatever the conventional wisdom about the current justices’ biases.When
asked afterward whether his confidence at the district court level is
about winning the general argument or more narrowly restoring the right
to marry in California, Boies said he was uncertain, acknowledging that
Walker might well reach a decision fashioned to survive review by the
Ninth Circuit and the Supreme Court.

March 16, 2010

An attempt by civil rights groups to keep sponsors of California's
same-sex marriage ban from obtaining internal campaign documents could
delay a verdict in the federal trial on the constitutionality of
Proposition 8, lawyers on both sides said Tuesday.

Attorneys warned of the possible bottleneck during a hearing where a
federal judge was asked to overrule a magistrate who ordered
organizations that fought the 2008 ban to turn over memos and e-mails
to lawyers defending the voter-approved measure.

"The real burden that is going to be imposed here if your honor
affirms the magistrate's ruling is the resolution of these incredibly
important issues is going to be delayed, whether you like it or not,"
ACLU lawyer Stephen Bomse told Chief U.S. District Judge Vaughn Walker.

The trial — the first in federal court to examine if the U.S.
Constitution prevents states from outlawing same-sex marriage — has
been on hiatus since late January, when Walker said he wanted to review
the evidence before scheduling closing arguments.

At that time, the defense reserved the right to present more
evidence before resting its case because its skirmish with the civil
rights groups over the campaign documents was unresolved.

Walker heard more than 90 minutes of arguments Tuesday and said he would issue a written ruling later.

Three groups that opposed Proposition 8 are challenging U.S.
Magistrate Joseph Spero's order earlier this month requiring them to
hand over all documents "that contain, refer or relate to arguments for
or against Proposition 8," with the exception of private communications
between their core leaders.

At Tuesday's hearing, lawyers for those groups contended the
disputed e-mails and memos were irrelevant to the case, and it was
unfair to make the groups sift through tens of thousands of documents
because they were not officially part of the litigation....

The wrangling mirrors pretrial disagreements between lawyers. A
federal appeals court eventually ruled that exchanges among top
campaign officials about strategy and messaging could be withheld, but
information disseminated more broadly was fair game in the trial.

Jesse
Panuccio, a lawyer for Proposition 8 supporters, told Walker that it
was only reasonable to require opponents of the ban to abide by the
same disclosure requirements as supporters. Plaintiffs have
tried to prove that outlawing same-sex marriage serves no legitimate
purpose, and the defense wants to see if their private conversations
showed they thought otherwise during the campaign, Panuccio said.

If
the judge forces the civil rights groups to turn over the documents by
the end of March, a possible appeal could further push back the closing
arguments, ACLU staff attorney Elizabeth Gill said.

March 15, 2010

Former Rep. J.D. Hayworth (R-Ariz.) said
Sunday that the expansion of state laws allowing gay marriage could
lead to people marrying horses.

Hayworth, during an interview with an Orlando, Fla., radio station
explained: "You see, the Massachusetts Supreme Court, when it started
this move toward same-sex marriage, actually defined marriage - now get
this - it defined marriage as simply, 'the establishment of intimacy.'"

"Now how dangerous is that?" asked Hayworth, who is challenging Sen.
John McCain from the right in Arizona's GOP Senate primary.

"I mean, I don't mean to be absurd about it, but I guess I can make the
point of absurdity with an absurd point," he continued. "I guess that
would mean if you really had affection for your horse, I guess you
could marry your horse."

The former Republican congressman then insisted that the "only way" to
prevent men from marrying horses is to create a federal marriage
amendment. Hayworth noted that he supports such an amendment.

In fact, the 2003 Massachusetts Supreme Court ruling striking down a
ban on gay marriage defined marriage as "the voluntary union of two
persons as spouses, to the exclusion of all others."

March 12, 2010

Following is Part 1 of an excellent analysis by the ACLU's Matt Coles of what the state of play is in the Prop 8 marriage litigation:

1. Four Possible Outcomes.

There are essentially four possible outcomes in the San Francisco marriage case (Perry v. Schwarzenegger, the case brought by Ted Olson and David Boies): the Big Win, the Smaller Win, the Smaller Loss and the Big Loss.

The Big Win would be the ruling the lawyers were shooting for when they filed the case: a decision saying that it is unconstitutional for a state to refuse to marry same-sex couples. A decision like that from the U.S. Supreme Court would mean that same-sex couples could marry in all 50 states.

The Smaller Win would turn on the fact that through its Domestic Partnership system, California gives the same legal rights to same-sex couples that it gives to married couples. A court could focus on that, and say that since the state gives all couples the same legal treatment, the only reason it could possibly have for giving some relationships a different name would be to make a statement that some relationships are not as good, not as important. The court could then strike down Proposition 8 saying that the federal Constitution doesn’t allow states to pass laws just to declare that some people aren’t as good as others.

The Smaller Loss, like the smaller win, would turn on the existence of California’s Domestic Partnership system. A court could say that federal courts only rule in cases with tangible, concrete harm. It might rule that since California gives the same tangible legal rights to all couples, there is no real harm of the sort that courts deal with.

The Big Loss would be a ruling that it is not unconstitutional for states to refuse to marry same-sex couples. The catastrophic version of that (not very likely as I’ll explain below) would be a ruling that, in general, it isn’t unconstitutional for states to discriminate on the basis of sexual orientation.

2. The Possible Consequences.

The Big Win from the Supreme Court, as I said, would give us marriage nationwide, taking down marriage laws in 43 states and effectively taking down the so-called Defense of Marriage Act (DOMA) as well. That might not necessarily mean the fight would be over. If conservatives regain control of Congress, they could well push for a federal marriage amendment again. That might be harder for us to fight than it was during the Bush years, when lots of moderates voted against it as “unnecessary” since we had DOMA. And we could see a kind of backlash fight in state legislatures like the fight that followed the Court’s 1973 decision upholding a women’s right to choose.

The Smaller Win, at the Supreme Court, would mean that same-sex couples could marry in California, New Jersey, Oregon, Washington and maybe Nevada. These are the states with full partnership, but not marriage. This would have one unhappy downside. State legislatures would probably be less inclined to pass Civil Union or full Domestic Partnership laws, because they would know that under the case, the full Partnership would be almost immediately be converted to marriage by the courts.

The Smaller Loss at the Supreme Court would mean that Civil Unions and full Domestic Partnerships don’t automatically lead to marriage. A loss like this would leave open the question of whether the federal Constitution requires states to give the same legal treatment to same-sex and opposite-sex couples (that issue, the Court could reason, isn’t in the case since California already did it). This sort of ruling could, if it were technical enough, possibly even leave the marriage question open. A decision like that would make it harder to win state cases like the marriage cases in Connecticut and California, which relied on a lot of federal constitutional law to go the right way.

The Big Loss would mean that unless and until we could convince the Court to change its mind, the only way to get marriage would be through state courts, state legislatures or Congress (pretty unlikely). The catastrophic version of the big loss would pretty much take sexual orientation discrimination claims out of federal court (again as I’ll explain below, pretty unlikely).

3. The First Stage: District Court.

Like all federal cases, Perry started in a District Court, the United States District Court for the Northern District of California in San Francisco. The Judge is Vaughn Walker, nominated to be a judge by Ronald Reagan, confirmed after being renominated by George H. Bush.

In the first order he issued in this case, Judge Walker made it clear that he was ready to give the plaintiffs the chance to put all the arguments about marriage on trial—for example, how the marriages of same-sex couples “harm” heterosexual marriages, whether heterosexuals make better parents. The order made it clear he would do that so long as the plaintiffs were willing to do a full trial. That wasn’t the lawyers’ original strategy—they wanted to go up to the Supreme Court on purely legal arguments. But they soon saw this for what it was, a matchless opportunity to get to the truth behind all the rhetoric about gay people and marriage.

The plaintiffs also realized that the odds were that if they gave Walker the record he wanted, they’d likely win. So the plaintiffs gave him the trial he asked for, and by all accounts, they did a fine job of it. My guess is that he’ll give them the decision they want—both the big and little wins. I don’t think the reason Walker will do this is because he’s gay—I have no idea whether he is and he’s said nothing about it publicly. I think he’ll strike down Prop 8 because after the record that’s been made, I think he’ll conclude like most constitutional lawyers that discrimination based on sexual orientation shouldn’t be treated as generally permissible. If it isn’t, it is very difficult to come up with a credible argument for excluding same-sex couples from marriage.

It’s a little hard to tell when the case will end in District Court. Although the trial is over, the case remains open while some disputes about evidence get worked out.

4. Second Stage: The Ninth Circuit.

If you lose a case in District Court, you usually have a right to appeal. There is a technical chance that this case won’t be able to be appealed. If it weren’t, the case would be over and that would be the end of Prop 8. But the decision wouldn’t affect any other state.

The odds are that once the case does end in District Court, it will head to the U.S. Court of Appeals. There are 13 “Circuits” in the Court of Appeals, and the one covering the westernmost states is called the Ninth Circuit. The Ninth is the slowest of the Circuits, and cases usually take two years and sometimes longer to get through it. If Judge Walker strikes down Prop 8, and it does go to the Court of Appeals, it is very likely that his decision will be stayed—meaning it won’t take effect—while the case is on appeal.

Beyond that though, it’s difficult to predict what will happen in the Ninth Circuit. The Ninth is thought by many to be the most progressive Circuit. But it is also a big court, with a fair number of conservative judges, and decisions are made by panels of just three. A case can be “reheard” by a panel of 11. But there’s no guarantee of a progressive majority there either.

If I had to guess, I’d guess a “smaller win” or a “smaller loss” at the Circuit. Even the conservatives on the Ninth Circuit won’t have much stomach for sweeping pronouncements about discrimination against gays being generally permissible. Even the progressives are likely to be modest in the hope they won’t set up too tempting a target for the conservatives on the Supreme Court. And Circuit Courts are institutionally conservative; they’re not supposed to go farther than they need to, and they tend not to.

There’s generally no right to appeal to the Supreme Court.You can ask the Court to review your case, and, most of the time, it can take it if the Justices want to. It takes votes from four Justices for the Court to take a case, five to win it if it does.

I suspect that if the Perryplaintiffs lose at the Ninth Circuit, the Supreme Court will not take the case even if they ask.Though marriage for same-sex couples is a hot topic in the law, there are few federal constitutional decisions that even touch on it, and there’s no split among the Circuits—none of the federal appeals courts have said the Constitution requires the state to stop excluding same-sex couples from marriage.I think, much as it has with Don’t Ask, Don’t Tell, the Court will stay out of the issue as long as no state is being required to marry same-sex couples by virtue of the federal Constitution.

But if the plaintiffs have either a small or a big win at the Ninth Circuit, I think the Court will certainly take the case.A win at the Ninth Circuit would mean either that the federal Constitution required nine western states to stop excluding same-sex couples from marriage (the big win) or that it required three or maybe four to stop.That’s a substantial enough interference with state sovereignty on a critical social issue that it seems inconceivable that the Court wouldn’t take the case.

2.What will the Court do?

Figuring out what the Court will do if it takes the case is another matter.There are three ways to look at it.

a. Win or lose:constitutional law.

First, you can take a pure constitutional law perspective.As I said before, most constitutional lawyers think that discrimination based on sexual orientation should not be treated as generally constitutional. If the Court were to agree, it would be unlikely to uphold the marriage exclusions.But it’s not as if this is the only way to read the Constitution.There is a constitutional theory that says that all discrimination except discrimination based on race, maybe alienage, and sex should be treated as generally constitutional (the idea is that the 14thAmendment, which guarantees equal protection, was really about race; most of the folks who subscribe to this view wouldn’t include sex either, but that constitutional ship sailed a long time ago).For the last 30 years or so, this narrow view of what kind of discrimination the federal Constitution prohibits has been doing better in the Supreme Court than the broader view.But there are times when the Court seems to be trying to chart a somewhat broader course.

b. Win or lose: history.

Second, you could look at the institution in a historical perspective.Generally speaking, the Court hasn’t held that the Constitution comes down on one side of a contentious social issue until states where about two-thirds or more of Americans live have already come down on that side of the issue.Seventeen states required racial segregation by law when the Court struck it down in Brown v. Board of Education.Sixteen states banned interracial marriage when the Court struck that down in Loving v. Virginia. Thirteen states had laws against same-sex intimacy when the Court struck Texas’ law banning it down in Lawrence v. Texas.

Still, this historical pattern isn’t rigid either.When the Court feels that something is right, and there is a widespread sense that the country is ready for it, it will move when many fewer states have acted.The “one person, one vote” cases of the 60s, which restructured virtually every legislature in the nation, are the most encouraging example.Roe v. Wade, which established a woman’s right to choose, is the most famous example, although less reassuring given the backlash and the Court’s own view now that maybe it acted too quickly.

Calculating when the Court is ready to act can be a tricky business.Both Brown and Lawrence undid earlier “test” cases designed to get the Court to strike down segregation and “sodomy” laws respectively, earlier cases in which the court did just the reverse.

c. Win or lose: counting heads.

Finally, you could do a political analysis—just count heads.This may be the favorite parlor game of everyone who cares about the Court, so I’m going to leave the details to you after making three observations, the first two relevant only if you think Justice Anthony Kennedy’s vote matters.

First, Justice Kennedy can be unpredictable.He’s been a champion on LGBT cases so far.There are only two Supreme Court cases that have directly done great things for LGBT people, and he wrote both of them.In the Lawrence case, he wrote stirringly about how states cannot “demean” our relationships, how we have the same right to autonomy that heterosexuals have.But this is also the man who wrote in Planned Parenthood of Southeastern Pennsylvania v. Casey that women have a constitutional right to control their own destiny, including deciding for themselves whether to terminate a pregnancy, and who wrote in Gonzales v. Carhart that decisions involving late-term abortions can’t be left to women in part because they might come to regret them later.And in the Lawrencecase, lyrical as he was about our relationships, he went out of his way to say that the case had nothing to do with marriage.It’s not that it looks like he’ll vote against us; it’s just that it is really very hard to say what he’ll do.

Second, I think Justice Kennedy is very proud of the Lawrencecase, and the Romer case, the other great LGBT rights case that preceded it.I couldn’t see him signing an opinion that said discrimination against gay people is generally constitutional.I think that a decision with a catastrophic outcome is thus pretty unlikely, because I can’t count five other votes for that.

It’s fair to ask, if a catastrophic loss isn’t likely, how big a risk is going to the Supreme Court.The answer depends on how much you care about how long it takes to get fair treatment for LGBT people.As I’ve written before, a Big Loss would make the marriage fight, and other gay rights issues take significantly longer.And, as I mentioned above, even a Big Win has risks.I guess it depends on how lucky you feel.

Finally, there is the videotaping issue.Just before the trial began in the San Francisco marriage case, Judge Walker ordered that the case be videotaped, broadcast in an overflow room in San Francisco and in a few other courthouses around the country and posted on YouTube the next day.The backers of Prop 8 convinced the Supreme Court to intervene and effectively prevent the telecast in other cities (which effectively ended the YouTube idea as well).We may not have heard the last of this; Judge Walker taped the entire trial anyway, and refused to destroy the tapes already made.

It is highly unusual, to put it very mildly, for the Supreme Court to become involved in a dispute over a pretrial order in District Court.And the Court suggested that one of the reasons it had done so was the fears Prop 8 supporters have of retaliation, a fear based on one of the more impressive urban myths of the new century—that the winners in the Prop 8 fight are being persecuted by the losers.But the Supreme Court’s ruling could be as much about a very paternal Court that doesn’t trust that the public will understand the subtleties of the law as it is about concern for the backers of 8.Kennedy watchers note:he was in the majority that stopped the distribution.

3.The Next Few Years.

The political consequences of the case haven’t gotten much attention, but they may be very important.Particularly if the plaintiffs win, but perhaps in any case, it is going to be very difficult to rally the LGBT community and its progressive allies to go back to the ballot in California while the case is still going on.People are not going to want to invest lots of time and money in an electoral battle that the courts may make irrelevant. And the case could be going on for some time.If Judge Walker does issue his decision sometime in the next few months, the earliest we’d likely see a decision from the Ninth Circuit would be the spring of 2012 (the Court could expedite the case, but that doesn’t seem likely).A Supreme Court decision would likely come nine months to a year later.

But if the case is likely to put a damper on things in California, it ought to be a spur to action elsewhere.As I said above, history tells us that the more states that have marriage, the better the odds are at the Supreme Court.We’re not going to get to 30 or 35 by 2012, but it would be good if we picked up a few more.Maybe more important, the more it seems like the country is ready for marriage, and it’s just the political process that is jammed, the better our chances with the Court.So any significant progress helps, and the higher the profile the better.2013 may seem like a long way off to the folks who brought the San Francisco marriage case and the folks who want to go back to the ballot in California.But in terms of making the kind of progress that might help us win at the Supreme Court, it’s tomorrow.

March 02, 2010

A new report entitled Moving_the_Middle_on_Marriage, from a DC think tank, argues that the key to success in lgbt efforts to persuade voters to support equal marriage rights is to show "that allowing gay couples to marry won't change the tradition [of marriage] or how their kids perceive it."

The report is based on polls conducted by Greenberg Quinlan Rosner Research immediately following last November's election in Maine (where voters repealed a marriage law) and Washington (where voters reaffirmed a domestic partner/civil union law). It summarizes the views of people (just under half the population) who stated that they supported legal rights for gay couples but not use of the "m" word. In other words, the analysis excludes those who supported full equality and those who opposed any recognition.

This very large middle "sees marriage as an ideal as opposed to a legal construct, and they have yet to be persuaded that gay couples fit into this ideal." The equality argument doesn't work, the report states, because it doesn't address the concerns that these voters have: that gay couples will try to "redefine marriage," that the schools will teach about homosexuality, that their children will see "gay couples [held up] as part of the ideal of marriage," and that their children would be more likely to experiment with homosexuality if same-sex marriage is legal.

Based on these poll results, the authors recommend that lgbt advocates develop messages to show that gay couples want to join - not change - the institution of marriage and that gay couples see marriage as a lifetime commitment. "We need to show people that gay couples fit into the definition of marriage that they already hold."

Wow, talk about hyper-normalization. There are so many things wrong with this picture.

The entire construct is built on what the study calls the "ideal" of marriage but what could more accurately be described as the myth of marriage. Marriage is not a lifetime commitment at least as often as it is. This has nothing to do with same-sex couples or anyone's "failure;" it is because human relationships are complex and changeable. When marriages that no longer nurture both partners come to an end, that is usually a good thing.

These middle voters are not hateful people, but they are living in a stew of scapegoating, projection and insecurity. The demonized image of promiscuous gay couples allows them to clutch onto an institution and identity that they know is unreal. But by defining same-sex couples out of the myth, they can pretend that hetero-normativity equals success. Sure my own marriage turned sour, but hey - at least I was doing it the right way.

Gay couples will change marriage, but not because they will be more or less successful at lifetime commitment. And children who grow up seeing that gay marriage is lawful will perceive it differently than people used to. Today's youth already perceive homosexuality differently than their parents did, which is undoubtedly one factor driving the concern being expressed. This is a good thing, and progressives ought to claim it as such.

The public presence of two men or two women sharing domestic life in ways that appropriate, rearrange, retrofit, unscramble or even just tweak gender norms will also represent change. It is actually the continuation of a change - the democratization of marriage - that began with the enactment of laws allowing married women to own property. Just as the slow steady growth of interracial marriage has benefited the entire society, in part by its educative effect, so too same-sex marriage will also send a message of acceptance of what once was taboo.

Candor is always a strategic problem, for whatever political movement. I understand the need to un-demonize lgbt people in order to achieve full legal equality. Scaring the horses is not the way to change attitudes. But let's not play into a messaging strategy that is, in the long run, silly and dishonest.